Article 5 of the law n° 2013-1028 of November 15th, 2013 relating to the independence of the audio-visual public allotted, with article 3-1 of the law of September 30th, 1986, a new competence with the Council to ensure “ in the event of litigation […] a mission of conciliation between editors of services and producers of works or audiovisual programmes or their agents, or the professional organizations who represent them. »
The mission of conciliation envisaged in article 3-1 of the law of September 30th, 1986 implies an action of the Council aiming at putting agreement the two parts. It differs from the regulation of disagreement in which the Council has the role in fine of imposing a solution. In the absence of explicit mention in the law, the Council is deprived of being able of injunction.
Who can seize the Council?
- All editors of services arising from the competence of the Council or organizations entitled to represent them, whatever their diffusion mode or their support: hertzian or not hertzian, linear or not linear;
- All producers “of works or audiovisual programmes” or their agents (distributors of programs in particular);
- Professional organizations entitled to represent the producers and/or distributors of programs.
Which is the object of the conciliation?
- The conciliation relates to a litigation made up. This one must oppose an editor of services and a producer, his agent or the professional organizations entitled to represent them.
In practice, that means that the litigation cannot relate to for example a dissension between two editors or a producer and an author or between a distributor of programs and a producer. It is necessarily necessary that one of the parts has the quality of producer or is the agent, including the distributors, or a professional organization entitled to represent it.
- The litigation must relate to a precise case: a work or an audiovisual programme, a specific stipulation within a contract (of prepayment, coproduction, etc), a framework agreement, a project of collaboration, etc
However, the Council can also treat sasines of producers complaining about difficulties of tying trade relations with an editor. For example, the absence of order or purchase of rights by an editor can be constitutive of a litigation, provided the producer or his agent can establish the existence of a refusal on behalf of the editor.
The litigation can have a plurality of origins. It can in particular have for object a disagreement on:
- terms of dissemination (partial diffusion, reached with the integrity of work, etc);
- conditions of transfer of rights (perimeter of the rights linear, nonlinear, etc);
- conditions of programming (time of diffusion, chain of diffusion, etc);
- conditions of remuneration;
- conditions of distribution, etc
The litigation can thus be upstream made up of the setting in production, as of the handing-over of a convention of writing, like downstream, during the diffusion or the repeat broadcast of work or the program.
- All “work or audiovisual programme” can be the object of a conciliation in front of the Council, whatever his nationality (European or not), its language of expression (French original expression or not), its seniority, the stage of the production (writing, period of catch of sights, post-production, etc) or the subject of the dissension (financing, schedule of diffusion, extended of the yielded rights, etc) within the limit of the leading freedom of the diffuser and the contractual freedom of the parts.
Which are the parts required?
There is no particular formalism of sasine (letter, email). The transmission of the following elements is necessary to carry out the mission of conciliation entrusted to the Council, in accordance with article 3-1 of the law of September 30th, 1986:
- at the beginning of the procedure: any piece of evidence attesting that a litigation is made up;
- at the beginning of the procedure and in the event of sasine by an agent: any attesting piece of evidence of its power to act with the name and the person whom it represents;
- in an optional way, any document allowing to lead to a friendly solution of the litigation;
- in an optional way, precision by the applicant of the intervention until it waits of the Council.
Each part identifies the elements concerned with the professional secrecy, of which she does not wish the communication with the other part.
How is held the conciliation?
- After reception of sasine, the College determines within which working group the conciliation is carried out and into formless the parts.
- Or chair it (E) working group hears each part. It determines, on a case-by-case basis, if these hearings are individual, joint or with the choice of the parts. These hearings take place as a need and with the wire of the advance of the conciliation.
- No time is required for the course of the conciliation. Each part has the possibility of transmitting complementary sendings following initial sasine without condition of time. During the first meeting, the parts can be meant over the duration beyond which it will be considered that the conciliation succeeded or failed.
Which form takes the intervention of the Council?
- If it estimates that there exists a litigation likely to be solved, the College proposes some, initially, a mode of resolution to the parts.
- In the second time, and subject to any further information which he would consider useful, he notes the agreement or the dissension of the parts. Unlike a regulation of disagreement, it does not slice the litigation in a direction or the other.
- The Council informs the parts, by mail, of the solution which he proposes to put an end to the litigation. In the event of success of its mission of conciliation, the Council formalizes by mail the terms of the agreement, so that the parts can approve them.
- Except if the parts wish it, the Council does not give any publicity to the action of conciliation. He gives an account of general manner of the achievement of his mission of conciliation in his annual report.